Cite as "AILA InfoNet Doc. No. 98040340 (posted Apr. 3, 1998)"
April 3, 1998
Mr. Richard Sloan
Director, Policy Directives and Instructions Branch
US IMMIGRATION & NATURALIZATION SERVICE
425 I Street, NW
Washington, DC 20536
RE: Proposed Rule Regarding Reduction in Documents and Other Employment
Verification Changes, INS 1890-97, 63 Fed. Reg. 5287 (February 2, 1998)
Dear Mr. Sloan:
Following are the comments of the American Immigration Lawyers Association to
the proposed regulation at 8 CFR Parts 274a and 299, regarding the reduction of
the number of acceptable documents and other changes to the employer
AILA is a voluntary bar association of approximately 5,000 attorneys and law
professors who practice and teach in the field of immigration and nationality
law. AILA's objectives include the advancement of the law pertaining to
immigration and naturalization, to promote reforms and to facilitate justice in
AILA members represent a wide spectrum of employers and individuals in all
aspects of immigration benefits and enforcement. Our attorney members represent
those at both ends of the employment eligibility verification process - the
employers who must comply with what is in many respects a confusing law, and
employers who must submit to the process to secure their livelihood.
Accordingly, we not only have a direct and immediate interest in the proposed
rule, but are uniquely qualified to address its impact on both interested groups
Before we address any substantive issues in the proposed regulation, we must
repeat our concerns regarding the system of employment verification and employer
sanctions. AILA believes that the employment verification and sanctions
provisions do not achieve their intended purpose, that they have resulted in
discrimination toward protected persons and have proven unworkable as well as
ineffective at deterring undocumented workers. The changes imposed by IIRAIRA
to the sanctions provisions do nothing to allay these concerns; in fact, the
reduction in the types of available verification documents and the institution
of the good faith defense only serve to increase the likelihood of
discrimination by employers.
Moreover, the Service, which is charged with the implementation of
employer verification from the employer's point of view, and the Office of
Special Counsel for Unfair Employment-Related Practices, which is charged with
monitoring acts of discrimination in the employment verification process, do not
work together to clarify just what is and is not acceptable in the hiring
process. Employers are less concerned about the actual documents than about
what they can ask regarding work eligibility, for example.
While these proposed regulations are clearer than the current interim
regulations, much ambiguity remains. This will mean continued uncertainty for
employers and for the 65 million Americans and others who charge jobs every year
in this country.
In addition, the proposed regulation demonstrates a recurring problem for
INS in the wake of IIRAIRA. In attempting to meet the challenge of drastic
changes in basic immigration concepts, the Service is actually creating more
work for itself and others. Nowhere is this more evident than in time-limited
employment authorization for certain groups, such as refugees and permanent
residents without their green cards. In both cases, the proposed regulation
requires proof of receiving the final document because of the time-limited
nature of the initial document and not because of the time-limited nature of the
authorization. While in some cases presenting a new document will be a
formality, in others it will be a real hardship (especially given continuing
delays in the ability of the Service to issue such documents). The end result:
at best, INS has to issue more proof of work authorization than exists by
operation of law and, at worst, because it cannot do so in a timely fashion,
authorized individuals lose jobs.
AILA recognizes, however, that the proposed regulation takes several
important steps to try to achieve more clarity or uniformity in verification,
and commends the Service for making this attempt. In particular, we wish to
recognize the Service's efforts at compliance with the Regulatory Flexibility
Act and will address some of these efforts in the body of our comments.
II. THE NEW STRUCTURE OF THE REGULATIONS MAKES FOR MORE CLARITY FOR EMPLOYERS
BUT COULD BE CONSTRUED INCORRECTLY
AILA recognizes in particular the effort made by the Service to make the
regulation more understandable by employers, particularly small employers who
are disproportionately impacted by verification burdens. The simplification of
such things as citations makes it easier for our members to assist their
employer clients in covering all issues in verification and prohibitions on
discrimination. In addition, the simpler formatting will hopefully lead to
greater understanding and less unintentional discrimination of protected
However, we note that the question and answer format, while simpler, might
lead to misunderstanding on the part of employers who will not comprehend that
these regulations carry the effort of law and must be followed. We suggest that
such a format would be more appropriate for the accompanying Employer Handbook
and that the headings would be more appropriate as affirmative statements. The
information contained in the regulations would not change, but the message to
employers that these regulations must be followed would be clearer.
III. PROPOSED REGULATIONS - SECTIONS NOTED FOR COMMENT
A. Section 274a.2
AILA notes with approval that this section generally provides some very
practical advice to employers who are unfamiliar with the process. We wish to
observe, however, that in Section 274a.2(d), employers should clearly be given
the choice of using a new form I-9A or to simply reverify on a new I-9 form.
This would eliminate confusion for employers who will be unfamiliar with a
"separate" form and deter a continuing belief as to the different (and even
"lesser" ) employment authorization of those with time-limited employment
authorization. While it is mentioned in the regulation and on the form, it
appears unclear that either method for reverification is acceptable, and some
employers will continue to be mystified or believe the form I-9A is a "better"
In fact, we question whether a separate reverification form is necessary.
Eliminating confusion would indicate fewer forms rather than more. Having a
separate form could lead to disparate treatment and, more importantly,
discrimination. The reverification section of the I-9 could be formatted to
make clearer for employers the instructions for reverification.
We also note that reverification is a very difficult process and is little
understood by employers. It is also a process out of the control of the
employees who must obtain valid renewals of work authorization from a system
which changes frequently with no notice to the applicant and with ever
increasing delays. Employees who in good faith attempts to obtain employment
authorization well in advance of when it is needed may encounter difficulties
with the INS database or with delays at Service Centers. Institution of a grace
period during which a renewal of an INS-issued employment authorization could be
sought without adverse impact on the employer and employee would correct this
1. Employers should be authorized to continue a pre-existing employment pending
extension of a previously issued work authorization.
Delays in obtaining renewals of employment authorization result in undue
hardship on both employers and employees. Delays are plentiful in the INS
system. For example, obtaining extensions of EADs currently takes approximately
75 days at the Nebraska Service Center, and 90 days at the Texas Service Center.
(AILA Monthly Mailing, Vol. 17, No. 4, April 1998, at 335.) Any employee who
does not plan well in advance to obtain a renewal of his work authorization is
therefore at a significant disadvantage, as is the employer who seeks to
reverify and must remove the employee from the payroll when he cannot. For
those who have a pre-existing working relationship, this makes no legal or
policy sense. AILA accordingly suggests that in such situations, the Service
adopt the policy that a receipt for a renewal document will suffice for a
limited period, much the same as a replacement document. In the alternative,
the Service should adopt a "no enforcement" policy with respect to continuing to
employ an unauthorized alien and paperwork violations where the employee has
provided the employer with a timely filed application for the extension of his
2. It is unclear what obligation an employer has where the document has lapsed
but the employee has underlying work authorization.
The regulation does not clarify for employers their own obligation where the
document has lapsed, and the employee has not produced a reverification
document. If the employer does nothing, he is subject to continuing to employ
and paperwork violations. If he removes the employee from the payroll or
terminates the employment, he could be subject to a discrimination violation.
This is exactly what happened in a recent court case, where the employer who
fired the employee for lack of employment authorization was held to have
discriminated unfairly. And this was even when the underlying authorization
was unknowingly extended (because the employee's underlying asylum application
had been approved but the notification had not yet gone through). If an
employer can be held to that standard, it will be impossible for employers to
determine when they should terminate and when they should not.
Employers need certainty. They need to be able to determine when employment
eligibility is time-limited, and to clearly know when that limitation is in need
of evidence of renewal and when it is not. They also need to know that their
duties as employers do not clash with the employee's rights not to be
discriminated against. The reverification section as it is currently
configured does not accomplish that goal.
B. Section 274a.3 - Documents Acceptable for Employment Verification
1. The proposed rule goes too far in eliminating expired documents.
Section 274a.3 does not permit the use of expired documents. Refusing to allow
expired photo identification documents, such as an expired passport, will
unfairly prejudice employers and employees because of the expense and delay
involved in obtaining new documents. Documents that establish identity (for
list B) or, in some cases, identity and employment authorization (such as a US
passport on List A) are not invalidated merely because the time authorization of
the document has lapsed. Such documents still identify the person as being who
they are, which is all that is necessary for these purposes.
The supplementary information explains that the purpose in not accepting
expired documents is to be able to take advantage of advancing technology in
fraud-resistant documents. While employers are concerned with ensuring that
they can rely on any document presented to them as genuine, they also do not
wish to do so at the expense of delay and lost personnel who cannot produce
unexpired identity documents. The Service's goal can still be met by limiting
the time that an expired document can still be presented (e.g., expired less
than three years before they are presented).
2. The Service should not eliminate the naturalization and citizenship
certificates from the list of acceptable documents.
The elimination of the naturalization and citizenship certificates will cause
hardships to certain groups of workers. Yet there is nothing in the legislative
history of IIRAIRA to indicate that there is sufficient concern about fraudulent
certificates being used in great numbers by undocumented workers. In fact, thee
documents were returned to the list by the interim rule. The workers who
possess these certificates may not possess other documents, such as a US
passport, or even a driver's license or other document to establish identity.
Absent clear evidence of fraud, the documents can and should be returned to List
3. The Service should consider returning school identity documents to List B.
There is great concern that, in the attempt to streamline the list of acceptable
documents, the Service may have gone too far. For example, the elimination of
school identification documents is of concern to both employers and their
potential employment pool. Employers seeking to hire those in their mid to late
teens wish to do so without the delay of parental involvement. The Service's
alternative places a burden not only on the employers, who must delay hiring
until parental attestations can be made, but also on the employees and their
parents, who must come forward to do so.
In addition, this attestation fails to take into account those parents of
U.S. citizens or permanent resident children who may themselves be undocumented,
and thus fearful of coming forward, even to a private employer, to make
attestations on what is obviously an INS document. Finally, there is no
evidence in the legislative history of IIRAIRA (or in the supplementary
information) of counterfeiting activity in school identification documents. In
the absence of such evidence, there seems to be no reason for removing these
documents from the list of acceptable identity documents, especially given the
small percentage of the population that uses them.
4. The Service should consider adding returning US birth certificates to List C.
In debating what became IIRAIRA , Congress spent a great deal of time attempting
to address the concerns of fraud in the use of US birth certificates. It is
clear that in striking the birth certificates from the list of usable documents,
Congress desired to take steps to eliminate one more tool for undocumented
workers and those who exploit them by trading in work authorization documents.
However, in eliminating this as a work authorization document, U.S.
citizens without passports will either have to obtain a passport or retrieve
their Social Security card (or, more likely, obtain a new one). As passports
are expensive (as noted in the supplementary information), particularly if being
used solely for this very limited purpose, many more Americans will opt for
obtaining a (free) Social Security card. We assume that the SSA has not been
as to the expected burden on its resources, but they could be considerable
during the next few years. This does not take into account the burden that will
be placed on employers as these new rules are discovered by employees.
Accordingly, we suggest that the Service use the discretionary power
granted to the Attorney General to return birth certificates as a valid List C
document. Limitations on the types of birth certificates that would be
acceptable (such as those within the last five years, for example, or those with
the security features noted in the legislative history) would cure Congressional
concerns about the counterfeiting and use by the undocumented, while allowing
U.S. citizens some choice and spreading the document production burden among
fifty states rather than one or two federal agencies.
5. INS should consider returning item 7 to List C.
In the proposed rule, the Service eliminates Item 7, which enabled the employee
to use as evidence of work authorization any "unexpired employment authorization
document issued by the INS (other than those listed under List A)." Why was
this removed? It served a valid purpose, allowing those with some form of an
older employment authorization to present it, even though not specifically
referenced. As this is a small class of people at most, fraud cannot be as high
a concern as for other documents. Accordingly, we suggest it be returned.
C. Section 274a.3(d) -- Receipts
AILA has significant concerns regarding the limitations imposed upon employers
who present receipts for extension of a time-limited employment authorization.
Particularly in cases where extension is a paperwork matter, and where the
underlying authorization already exists, this makes no administrative or legal
sense. If the Service will permit continued employment for a receipt for a
replacement document, it should also permit continued employment for a renewal.
1. Some documents that are considered to be "receipts" should not need to be
followed up with additional documentation.
Certain documents or evidence of employment authorization are temporary in
nature. However, the underlying employment authorization is permanent. These
include temporary I-551 stamps and refugee admission stamps. Both are noted in
the proposed rule as being "receipts" requiring followup documentation. In
neither case is the underlying authorization invalidated with the passing of
that expiration date. There is no reason to treat either document as a
"temporary document" because they are evidence of lawful status which does not
"expire." There is no reason to require a worker with these types of employment
authorization to show any other document.
In addition, employers and employees are both disadvantaged by the INS
requirement to produce continuing evidence of employment authorization clearly
beyond their control. For example, the proposed rule at 274a.3(d)(1)(ii)
requires proof of the actual form I-551 within 180 days. However, the INS is
currently experiencing significant processing delays in returning these cards to
new permanent residents. See, e.g., "Many Green Cards Delayed by Bugs in New
Machine," New York Times, March 25, 1998. This deteriorating situation does
not look as if it will be rectified for some time, only adding to the
frustration of employers and employees in trying to comply with verification
requirements which are unnecessary.
The proposed rule also requires that if an employee shows an I-551 stamp as
proof of employment eligibility, he is required to provide the permanent I-551,
and not any other evidence of employment authorization. This will frustrate
many employees who can obtain other evidence of employment authorization (such
as a driver's license and a social security card) before he can obtain the green
card. It also skirts dangerously close to the appearance of discrimination-we
require employers to be scrupulous about not discriminating by asking for
specific documents, yet in the guise of a "receipt" we ask employers to require
a specific document. This will be confusing to many employers, to say the
least. It is again an example of the Service advocating a position that will
mystify rather than clarify.
We accordingly recommend that INS either grant a far longer time for producing
the document in question under this section or broaden the types of documents
that can be used.
D. Section 274a.4--Retention of Documents
AILA wishes to commend the Service in finally enunciating a clear policy on
retaining documents, including photocopies. Employers require such clarity to
determine their liabilities in this regard and to have sufficient notice of the
standards to which they will be held.
E. Section 274a. 5--Continuing Employment
Again, this regulation provides employers with clarification of the situations
under which an employer has an obligation to rely on a previous I-9 or when he
must complete a new form. However, it seems unreasonable to place the burden
in all cases on the employer to demonstrate that the individual is expected to
resume employment at all times and that the expectation is reasonable (section
274a.5(a)(2)). The employer may not have information known to the employee that
could aid in the proof (such as changes in circumstances of the employee) and
this information should be considered.
F. Section 274a.6-Inspection of Forms I-9
We respect that the Service wishes to adhere to long-standing policy with regard
to the "three-day rule"-that is, that documents for inspection must be made
available with only three days' notice to the employer. However, we point out
that in this growing climate of large and decetralized operations for the
keeping of human resource records, three days may not be sufficient notice to
collect and transport all required documents. We suggest that, in practice and
wherever possible, more time be given to employers to comply.
In addition, the proposed regulation does not state the standard for the
issuance of a subpoena in the course of an investigation in Section 274a.6(d).
The lack of guidance means that the public is not on notice with respect to when
and under what circumstances they can anticipate a subpoena for the production
of Forms I-9 or related documents. More importantly, there is no notice as to
when the use of such an enforcement tool is inappropriate. A significant
number of motions to quash may be the unintended result of this lack of
G. Section 274a.7--Prohibition and Good Faith Defense
We note that in the supplementary information the Service acknowledges that
additional regulations will be published concerning the implementation of the
good faith defense. Initial Service guidance was disseminated to the field in
March 1997, and continues to be the prevailing guidance to employers and the
Service. We look forward to commenting on this regulation when it is published.
H. Section 274a.10-Investigations
The regulation is silent on the wire tap authority being used by Service
investigators. This authority was instituted by IIRAIRA as was the other
changes initiating this regulation. Again, the public deserves notice of the
standards and situations for which such enforcement tools are to be used against
As a general matter, we note with concern the growing use of these enforcement
tools and in particular the exploitation of employees, particularly undocumented
workers, who are being used as accomplices. Under the promise of some form of
protection, aliens are being encouraged to "turn" against employers and obtain
evidence that can be used in investigations. It becomes the obvious interest of
the alien to obtain the information at whatever cost. In the absence of
identifiable standards, this is a particularly egregious practice.
I. Section 274a.11-Penalties
The regulation is also silent on the negotiability of a notice of intent to fine
(NOIF) and the potential for a settlement agreement. Yet both are common
practices, particularly for paperwork violations. Employers who are attempting
to defend against an investigation need to have adequate information on the idea
of settlement and the options to avoid protracted adversarial proceedings if
they wish to do so.
IV. THE FORMS REQUIRE FINE-TUNING
AILA has specific suggestions on the draft forms, as follows.
A. Draft I-9.
- Going from one to two pages will pose a tremendous paperwork burden on
employers. Likewise, requiring presentation of a two-page instructions form is
- Neither the employer nor the employee is fairly warned about the penalties for
providing false information on the I-9. In particular, the alien employee
should be warned of the potential consequences of a material misrepresentation,
and what that would consist of.
- Who fills in the Date of Hire (top of I-9, above Section 1), and Date of
Reverification (each section of the I-9A)?
- Why provide inconsistent information on the Form and in the regulations with
respect to the timing of completion of the I-9? If the employer can have a
newly hired employee fill out the form prior to the start date of employment,
why not say that in the instructions portion of Section 1?
- In the case of a receipt for a replacement EAD or for an original EAD in the
case of a newly admitted refugee, where would the receipt be documented? List
A? List C? Why is there no reference to receipts on the face of the I-9?
- Clarify whether the I-551 stamp is good for 180 days after the start date of
employment, or until the expiration date shown.
- Why are there two Document # lines under List A? Why is one spelled out and
B. Draft I-9A
- Is this form necessary? Why not just require the employer to complete a new
I-9 if work authorization expires?
- The document verification space on Form I-9A is too cramped. Also, employers
need an explanation for why there are two updating sections on Form I-9A.
(Employers will believe that they will be required to complete the section two
times even though the underlying eligibility may be permanent.)
V. THE STATUS OF THE SEPTEMBER INTERIM RULE
AILA wishes to point out that the law has changed the status of the
Service's interim rule. According to the supplementary information, the interim
rule was to "maintain the status quo to the extent possible under the IIRAIRA
document provision." (63 Fed. Reg. at 5289). That effective date was moved to
April 1, 1998 by Pub.L. 105-54. Id. However, it is now after April 1.
Employers are confused as to whether the interim rule is still in effect.
Please publish adequate notice for employers on how they should treat documents
removed by law but still in the interim rule.
VI. IMPLEMENTING THE NEW RULE
Nowhere in the proposed rule is an acknowledgement of the Herculean task
facing the Service - the education of employers on the new requirements,
including the total reworking of the Employer's Handbook that is more widely
used by employers as their only guidance as to their requirements of the law
than are these regulations. We hope that the Service will work closely with the
affected public to inform them of the new law and to educate them on its
effects. We also hope that the Service will work AILA and with other
associations with a direct interest in the content of the Handbook to ensure it
reflects everything it needs to inform and educate the public.
AILA appreciates this opportunity to comment on the proposed rule, and
remain available to discuss our thoughts with the Service at any time.
THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION
Jeanne A. Butterfield, Executive Director
Elissa M. McGovern, Associate Director for Liaison
Roxana C. Bacon, Chair, INS Enforcement Liaison Committee
© 1999, American Immigration Lawyers Association